Marlyssa Manuel, left — with her partner, Nikka Hudspeth, and their two children, Kylie, 4, and Zayn, 1 — says she'd rather wait on marriage until it's recognized in Tennessee. / Submitted

Written by

Heidi Hall

The Tennessean

If two Middle Tennesseans of the same gender want to make a lifelong legal commitment to each other, they don’t go see the preacher.

A lot of them go see Abby Rubenfeld.

The Nashville attorney tells them all the ways they can connect their lives on paper. Advance directives on who can make medical decisions. Co-ownership of property. Wills.

She gives discounts when she can, but it all takes time and money — two things straight people don’t need as much of to get the same benefits.

“I could go out Monday and pick up some man I don’t even know in front of the county clerk’s office and get a marriage license right that minute because we’re of different genders,” Rubenfeld said. “If I go with my partner of eight years or 80 years, we can’t get a marriage license.”

Rubenfeld did neither. The former legal director for gay-rights group Lambda Legal Defense married her partner in San Francisco in September 2008, before that state’s voters ended same-sex marriage through Proposition 8.

Now she and countless other gay Tennesseans who married in other states are waiting to see if the U.S. Supreme Court will take up Perry vs. Brown, a case that seeks to overturn Prop 8. An announcement on that could come by the end of the month.

Some hope the Perry case could do for same-sex marriage what the Supreme Court ruling on Loving vs. Virginia did for interracial marriage in 1967. Before that, interracial marriage laws differed from state to state, and Mildred and Richard Loving, an interracial couple who married in Washington, D.C., didn’t enjoy the same recognition in their home state of Virginia, where they were arrested.

The Supreme Court ruling made laws against interracial marriage topple across the U.S.

But don’t count on the same thing out of Perry, said Mark Brandon, a Vanderbilt University constitutional law and political science professor. The timing had to be right for the Loving case — the court passed on an opportunity to make a similar ruling in the 1950s.

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And once the court took it up, it decided to rule broadly, that the right to marry someone of another race is essential to the constitutional promise of the pursuit of happiness.

If the court takes up Perry at all, it could issue a ruling that applies only to Prop 8 and California, not the status of same-sex marriages in the rest of the country.

“Constitutionally, race is an explosive and salient matter,” Brandon said. “The court has closely scrutinized legislation that classifies or discriminates by race. The court has had a less emphatic position where sexual orientation is concerned.”

'Unfair and inconsistent'

The plaintiffs in the Perry case are two couples — one of the plaintiffs is Kris Perry — who want to marry in California. They’re represented by Theodore B. Olson and David Boies, most famous for taking opposite sides in the Bush vs. Gore election challenge.

Boies said the Perry case reminds him of the days he spent fighting for civil rights in Mississippi in the 1960s, and he thinks the timing is right for it.

“We now recognize that discrimination based on sexual orientation is as unconstitutional and unfair and inconsistent with the American value of equality as discrimination based on race, gender or religion,” he said.

On the other side is Charles Cooper, a Washington, D.C., attorney representing Prop 8 proponents. He has a Tennessee connection — successfully representing the state in a 2005 lawsuit filed by participants in TennCare. It was prompted by then-Gov. Phil Bredesen cutting thousands of residents from the rolls of the government-sponsored insurance program.

Cooper says the Perry case would have broad implications for same-sex marriage laws nationwide even if the court upholds only the 9th Circuit’s ruling about California. He said the 14th Amendment, which says states can’t take away U.S. citizens’ privileges, doesn’t take away states’ rights to decide what constitutes a marriage.

“In California, the people took that issue up into their own hands and reaffirmed the traditional definition of marriage as the union of a man and a woman,” he said. “That was within their authority to decide, and our Constitution does not itself ordain same-sex marriage.”

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Debate in the church

Americans didn’t talk much about gay life until the 1950s, said Susan Myers-Shirk, a professor of U.S. cultural history at Middle Tennessee State University. Back then, straight people mostly discussed whether being gay was just sick or actually criminal, and some churches looked for ways to help gay parishioners.

Three decades later, famed televangelist Jerry Falwell and the Moral Majority made same-sex relationships a political issue, believing that the Bible is the inerrant word of God and should inform American policy.

But in the 1990s, after a large number of people began seeing being gay as a biological characteristic instead of a moral choice, discussions on same-sex marriage became framed in the context of equal rights, Myers-Shirk said.

A split among America’s churches complicates the issue. Some say the Genesis account of God bringing together one man and one woman — cited by traditional marriage supporters — must be dismissed when considering the rest of the Old Testament, where King Solomon boasts 700 wives and 300 concubines.

And New Testament prohibitions on same-sex relationships have to be considered in historical context, said Pastor Greg Bullard of nondenominational Covenant of the Cross Church in Madison.

“(Paul) is speaking to that day and age,” he said. “The early church said it was preferable to be celibate, but if you could not keep your pants up, make sure you get married. Paul was answering questions asked of him. He did not address all the possible issues you could have.”

Bullard, who is gay and religiously married — but not legally — has performed more than 50 same-sex weddings. A few of those couples also chose to marry legally in other states, he said.

The Episcopal Church recently approved provisional liturgies for performing same-sex marriages, but the bishop over the Nashville-based Diocese of Tennessee, John Bauerschmidt, told local priests not to perform those. The diocese has 46 churches and 16,000 members.

“For me, theologically, the relationship between men and women is one of the most basic foundations of human culture,” he said.

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“I think it is a good idea for the church to tread very lightly in changing its understanding of marriage.”

Bauerschmidt said the Genesis account is an important one for understanding marriage, and the New Testament can’t be discounted either, because modern-day Christians can’t assume they simply know more than Christianity’s earliest followers.

The legal implications

While churches sort through religious views on the topic, Rubenfeld is already dealing with the legal implications of a country where laws on same-sex marriage vary from state to state.

She wryly calls the federal Defense of Marriage Act — which denies marriage benefits to same-sex couples and itself faces potential Supreme Court challenges — the Lawyers Full Employment Act because the issues springing from it are so complicated.

Rubenfeld said she’s already handled a same-sex divorce before a Tennessee judge, whom she declined to name. He ruled that the issue couldn’t be heard in family court — because Tennessee didn’t recognize the marriage — but he issued an order saying the marriage was void and the legal relationship terminated.

But if one of the spouses moves to a state that recognizes the marriage, such as Iowa or New York, the local judge’s order won’t mean anything.

Marlyssa Manuel and her partner of three years, Nikka Hudspeth, live in Clarksville and are raising two children — one from an earlier relationship of Manuel’s, and the second raised solely with Hudspeth, the product of a friend who donated sperm.

But with nothing on paper tying Hudspeth to the family, Manuel lives in fear something might happen to her. So far, it’s too expensive to hire an attorney — both partners work in home health care — or to get everyone to travel to another state for a wedding.

“I try not to dwell on it,” Manuel said. “Life is going to go on no matter what. But if we were married, we’d have that commitment, the pictures and the memories of it. We could say, ‘This is my wife.’

“It’s something we would rather wait for than have a piece of paper from another state that doesn’t count here.”